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tv   Ninth Circuit Court of Appeals Judges Testify on Court Restructuring  CSPAN  March 16, 2017 8:11pm-10:13pm EDT

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eastern. follow our live coverage on c-span2 and and the c-span radio app. this morning the house judiciary committee looked into changes for the ninth circuit court of appeals court. it made news when rejecting president trump's executive order on refuges. this hearing is about two hours.
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the subcommittee on courts, intellectual property and the internet will come to order. without objection, the chair is authorized to declare a ves at any time. we welcome everyone for today's hearing bringing justice closer to people examining ideas for restructuring the ninth circuit and i now recognize myself for a short opening statement. it has been more than a decade since we last considered a bill to split the ninth circuit. the ninth circuit is by far the largest circuit of the 12. additi additionally, the ninth circuit hears 20% of the appeals and some would say from this side of the dase from the various states its the most reversed circuit. not withstanding that, it is my
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circuit. it includes my state. i'm deeply concerned today and will be until we find resolution that stripping away the other states of the ninth circuit would still leave california as by far the largest circuit. when we come together today we come together with two challenges. one, there is no way without splitting a state to have at current california not be, if it were all by itself, the largest circuit. seco secondly, we have wrestled with this for decades. during that time the ninth circuit has grown and today with five -- four vay captainsies, there is additionally five more requested. if all were granted the ninth circuit would be 34 judges. we're honored to have some of
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those judges with us today. i am here to say i'm pleased to see the fifth circuit in 1980 was done -- its splitting was done in less than a year, no ill effects and in fact passed both the house and senate by enthusia unanimous consent. i hope today to have the same result to whatever we propose. it's my pleasure to recognize the ranking member of the full committee, mr. conyers for his statement. >> thank you, mr. chairman. members of the committee, today's hearing provides an important opportunity to exwhethe examine whether the ninth circuit court of appeals is adequately able to perform its duties as it is currently structu structured. the hearing takes on importance in the wake of decisions in the
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ninth circuit and elsewhere, overturning president trump's muslim refuge ban. instead of coming to terms with the legal flaws with his own executive order, president trump has chosen to attack the nirnt circuit which he has said is in chaos and frankly in turmoil. those are quotes. last night, after learning of the hawaii court's decision, again rejecting his ban, he said people are screaming to break up the ninth circuit. you have to see how many times they've been overturned with their terrible decisions, in quotation. none of what the president has charged about the ninth circuit
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is true. the ninth circuit is as well organized as any in the country. the very few ninth circuit cases the supreme court takes up a significant portion are overturned. that's true for every circuit, several of which are overturned at a higher rate than the ninth circuit and overall less than one-tenth of 1% of the ninth circuit decisions are overturned by the supreme court. the realty is this is not a new debate president trump has brought us to, one we have had for decades. although i will not speculate why there seems to be such an interest by my conservative colleagues to divide the ninth
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circuit. there are several points we should keep in mind. splitting the ninth circuit would not bring justice closer to the people. it would result in further delay, reduced access to justice and wasted taxpayer dollars. if the ninth circuit were divided there would not be sufficient judicial resources, particularly with respect to addressing the significant caseload demands of the district and bankrupt coursy courts. although legislative proposals introduce this congress take different proposals to dividing the ninth circuit and creating a new 12th circuit, inevitably, all of these have one common problem. such restructuring would result
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in a significant financial cost to american taxpayers because millions of dollars would be needed to construct a new circuit headquarters and for other costs. another concern i have is that splitting the ninth circuit would do little to improve judicial efficiency and none of the legislative proposals would actually resolve the heavy caseload problem because a clear majority of the ninth circuit cases come from california. any circuit that includes all of california will still have the largest number of judges and appeals, and it would serve the largest population. finally, i am particularly skeptical of any legislative
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proposal ostensibly intended to assist certain entities, when in fact those very same entities oppose or question the need for such a legislative fix. dividing the ninth circuit is opposed by a majority of the judges in that circuit as well as by the bar, including the american bar association itself. in fact, the white commission, which congress established to study the issue, concluded in 1998 that splitting the circuit was impractical and unnecessarily. so i ask my colleagues to very carefully listen to the witnesses today and join me in opposition to dividing the ninth circuit. i thank you, mr. chairman. >> and i thank you.
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with that, we recognize the chairman of the full committee for his opening statement, mr. goodlatte. >> thank you, mr. chairman. this morning the sub-subcommittee will hear testimony on the long standing issue of the vastly large ninth circuit court of appeals. for the past several decades the size of the circuit has continued to grow far in excess of other circuits. 20% of the u.s. population resides in this circuit making it twice the size of any other circuit. today, it has 29 authorized judgeships also far exceeding the next closest circuit, the fifth, with only 17 judges. the judicial conference asked for more judges and more may be coming this summer. in the 2005 testimonies before the house appropriations committee, judicial collegiality
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is an important component for the consistent rule of law. oversized circuits wherever they may be located undercut such colleaguialty by limiting the actions of the entire significant as a collective whole. in our creation of a court system below the supreme court, congress envisioned an appellate system limited to the sub--set of the whole circuit then followed by the circuit sitting as a whole hearing any further appeals. it is unfortunate the prior judges authorized them to masquerade as true en banc panels. this has resulted in the appellate system being lost. although they have ability to use true en banc panels they have never done so despite critical cases they have handled. despite a similar crowding in
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the fifth circuit, this committee decided to move three of the six states to a new 11th circuit and provided only a year transition time. i highlight the fact the legislation passed in both the house and senate by unanimous consent. the transition required by that bill moved smoothly. various groups have studied the circuit. the white commission recommended the circuit not be formally split but instead divided into three separate ajudd cative divisi divisions. whatever one may think of this commission and its recommendations it, too, recognized the need do something about the ninth circuit by fligspli splitting it into three divisions with a process to cause interdivision splits. there is not a huge leap to dividing the ninth circuit into three ajudd cative decision ofs and separate circuits outright. to those who might argue against
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the split by saying size creates efficien efficiencies, i would suggest no one has suggested combining the other circuits to make them bigger. as this moves to issues facing the federal courts this year i look forward to addressing the ninth circuit in addition to other issues. thank you, mr. chairman, i yield back. >> i thank the chairman. i'm sorry. we now recognize the gentleman from new york, the ranking member of the subcommittee, mr. nadler, for his opening statement. >> i thank the chairman. proposals to split up the ninth circuit court of appeals have been floating since 1971. what was a bad idea at the time of pearl harbor is a bad idea today. they generally mass their arguments and concerns over its size and concerns of the
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detrimental effect of efficiency and consistency of its rulings. they say it covers too much geographical distance and too large population to be effective. they argue because its so large there is administrative waste and procedural delays and the judges can't work together to produce a consistent rational jurisprudence. it says otherwise. it is true it is the largest physical area and population covered and caseload with a district that includes alaska, hawaii, territories of guam and mariana islands it is no surprise the judges must occasionally travel great distances to serve the entire circuit. we have things like jet planes and e-mail to minimize disruption any physical distance may cause. that disruption is less today than 1941. it is unavoidable it will cover a large population unless you
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were to split the state in half which would be disastrous from judicial coherence, a large circuit is a fact of life. there is no evidence the ninth circuit size impeded the ability to provide justice. to the extend there is a backlog of cases compared 0 other circuits more resources can be devoted to resolving those issues. just recently the congress suggested adding five judges to reduce the work load per judge and using technology to help with efficiency. saying the nirnt circuit is a renegade court with wild and unpredictable rulings, to say it is the most reversed court is wildly misleading. given the smallest sample size of so many cases that ever reach the supreme court, it is hard to
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judge the high rate of reversal in many generations. the worst numbers cited by critics is 2 1/2 reversals per 1,000 decisions. what this debate is really all about is that conservatives do not like the more liberal rulings that occasionally emerge from the ninth circuit. they believe they can manufacture a new circuit which can produce more conservative results. that is a dangerous matter. like clockwork when ever it produces a decision conservat e conservatives disagree. whether it really is the pledge of allegiance should not include the words under god or restrictions of gay rights or the most recent unanimous decision to uphold a stay on president trump's unconstitutional muslim refuge ban, the ninth circuit has long been in the sights of republican politics. just last night, president trump said at his campaign rally,
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people are screaming -- this is a quote -- people are screaming, break up the ninth circuit. that ninth circuit you have to see. look how many times they have been overturned with their terrible decision, unquote. to manipulate the courts to achieve the political ends you seek is highly inappropriate. just as there is a nationwide movement to end legislative gerrymandering we should resist this judicial gerrymandering as well. proponent of splittin inting up ninth circuit, none of their arguments withstand scrutiny and the alleged harms they cite would not actually achieve the results they say they want. any proposed 12th circuit would cover a significant distance and leave a large circuit base in california all while introducing uncertainty into the law at great 10-year expense. while i believe splitting up the circuit would be unnecessary and un-wise i appreciate the 2u7
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opportunity to hear from our witnesses. the judges appearing today like the colleagues on the ninth circuit oppose such a split as does the american bar association and numerous practitioners and experts who have studied this issue at great depth. i look forward to the judges' testimony and testimony of other witnesses and giyield back the balance of my time. >> thank you. all members may have five legislative days to have their opening statements and comments placed in the record. without objection -- we'll waive other ones. i will recognize the gentleman from texas about unanimous consent. >> thank you. i'd ask for unanimous consent to include in the record attachment how the cases would be broken up if it was california in the ninth circuit and all the other states in another circuit.
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>> without objection, it will be placed in the record. question have a zingzing -- distinguished panel here today. the statements will be given in their entirety and ask you to keep it at five minutes or less. i will not hold i to it but the light will indicate your time has expired. decisi decisionly, i want to thank the judges who came and in some cases stayed for protracted period through the snowstorm to be here today. i know it was a personal sacrifice and i very much appreciate it. before i introduce the witnesses, it is the committee rule all witnesses be sworn. would you all please rise, rays your right hand to be sworn? do you solemnly swear or affirm the testimony you give today will be the truth, the whole truth and nothing but the truth? please be seated.
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let the record indicate all witnesses answered in the affirmative. our witnesses today including the honorable sidney thomas, chief judge of the united states court of appeals for the ninth circuit. the honorable carlos baya, circuit judge for the united states circuit court of appeals, ninth circuit. the honorable alex kosinski. circuit judge to the united states ninth circuit. and professor john eastman of championman university school of law and professor brian fitzpatrick of vanderbilt university school of law. with that, we'll go straight down, starting with you, chief. i think you have to turn your mike on the button in front. >> thank you for the opportunity to testify. my name is sid thomas it's my
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privilege to serve as chief judge of the ninth circuit court of appeals but the views i express today are my own. the ninth circuit is effectively and innovatively managed and provides tremendous service to the district courts. splitting the circuit would have a devastating effect on justice in the western united states. it would increase case delay and cause expensive unnecessary bureaucratic duplication. a split would be costly. under legislative proposals it would cost an estimated 1$136 billion, required renovation is in seattle could reach $54 million and the construction of new space for holding court in las vegas, anchorage and missoula would cost about $2 million at each location. those facilities would have to be staffed year-round and only used a few weeks a year. a split would be made to serve
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executives and staff and two circuit libraries. none of that is necessary. over the past decade, the judiciary has made an effort to control costs with consolidation and shared administrative services create agnew expensive duplicative and unnecessary bureaucratic structure would be a giant step in the wrong direction. when a circuit split is discussed, most of the focus is on the court of appeals. the court of appeals is only a small part of our circuit. it includes 14 district courts, bankruptcy courts and pretrial probation offices and they do the nuts and bolts work that affect the largest number of citizens. circuit division would substantially reduce the services we provide to them. we provide support for cybersecurity, judicial courts and health and wellness and many other aspects. the ninth circuit resources allow the quick deployment of
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districts in need. when arizona was in a state of judicial emergency with a skyrocketing criminal docket, we were able to quickly dispatch visiting judges from within the circuit to solve it. we do this all the time. 80 judges took 15 cases each recently to resolve 1500 cases in california's eastern district. we simply would not have sufficient resources to mount this kind of effort with a circuit split. we have been aggressive to find ways to save money. reduce physical space saving taxpayers $7 million in rent, our capital case and electronic system has saved hundreds of thousands of dollars and the list goes on. most of these initiatives would not be possible if the circuit
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were split because we would lack personnel and money. a circuit split would significantly increase delay and not reduce it. the ninth circuit is known for effective course management. a position unique to the ninth circuit resolved over 4,000 motions and fee vouchers would otherwise have been assigned to judges. staff motions attorneys disposed over 5,000 non-controversial motions through clerk orders otherwise handle by judges. on staff presentation, judicial motions and screening panels resolved almost 1300 merit appeals, 1300 habeas appeals and motions and authorized cases for procedural jurisdictionsal defects. we settled 1,135 appeals and that exceeds the output of many of the smaller circuits. the year before it was 1500 appeals. we've had great success request
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our mediation efforts. the continuing mediation efforts rising out of the california energy black-out cases resulted in 8$8.7 billion being refund dollars to consumers, businesses and local governments. we've only been able to achieve the success because the ninth circuit has economies of scale and resources lost in a circuit split. one cannot divide one budget between two circuits and unnecessarily vacate staff and significantly reduce staff support and expect faster resolutions of appeals or better service to the public. a circuit division would create more appellate delay and significantly reduce support for judicial zrirkts and be was wastefully expensive. can we do better? certainly we can and we will continue to try. the best way to have effective justice in the west is to keep the ninth circuit in tact. thank you, mr. chairman.
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>> thank you. judge. >> good morning, mr. chairman and members of the subcommittee. >> i'm afraid the same affliction happens to everyone. >> good morning to the members of the subcommittee. thank you for taking the time to hear from the judges on restructu restructuring. i've served on the ninth circuit since october 2003 when my nomination by president george w. bush was confirmed by the senate, the views i express are my own. based on my 13 years experience serving on the court i am opposed to the geographical division proposed by several bills. i would like to express three topics about the advantage of the circuit and offer a couple critici criticisms. first, i point to the great advantage of business and professional communities having a uniform body of law that covers the nine western states and the pacific islands. a decision by our court binds courts and litigants and the
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whole western area. this minimizes risks of law, maritime trade, labor relations, discrimination employment law will be different in phoenix, san francisco or seattle. you can easily grasp this is not an abstract advantage. who has standing to sue on a copyright infringement claim is now uniform in washington state home of microsoft corporation and california, home of google corporation, thanks to our silvers case. whether an employee qualifies as a whistle-blower if jo has or has not informed his superiors but not informed the securities and exchange commission calls for the same element of proof in san francisco and tucson. mr. new come, the general manager of microsoft and former general manager of the three time world series champions san
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francisco giants pointed out -- >> you made your case. >> pointed out the practical effect of this predictability and opposition to splitting the circuit back in 2006. a practical illustration of the advantage of a single western circuit would be the intellectual property rights litigation over the past 30 years between microsoft, based in seattle and companies such as apple computer and sun microsoft systems based in silicon valley. while this litigation proceeded before trial courts in the northern district of california we were reassured by the fact the district court there would apply the same interpretations of copyright law as seattle because they were both part of a single federal circuit. the very size of the ninth circuit gives foreign and domestic traders confidence against the perception they will
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be hometowned. indeed the advantage of a large circuit may point to a different restructuring of appellate courts nationwide a concentration of circuits rather than a dispersal. the best size for the circuit depends a great deal on the issue that's being framed. uniformity of tax laws is best achieved by a large circuit. a second ropes weasons i favor retaining our present structure we sit on panels with judges of other states who come to the circuits with many different backgrounds and experiences. this is especially true environmental law cases where the judge is someone who has lived and practiced and judged where the trees involved actually grow or the streams that flow actually are. and the jobs of harvesting the trees and controlling the str m streams are affected. that helps determine the analysis and the outcome. this predictability and
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uniformity of law based on diversity of thought and background of the judges would surf fer under any dull bull canization. the large geographic size, already mentioned by member nade ler we no longer travel in between circuits on overnight trains and don't wait for postmen to bring us decision is in our memoranda. the size of the circuit is not a cause of delay or malfunction. also mentioned by the chief judge the additional costs proposed are unnecessary. in conclusion i think you should take into consideration the views of the people on the ground. ask the judges of the ninth circuit whether they want to be split and i think you will find a very small minority saying it should be split. the overwhelming majority of the
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people directly involved are against the circuit split. thank you for giving me this opportunity to share my thoughts with you. >> it is my pleasure. judge. >> mr. chairman, members of the committee, it's a real honor to be here and a real pleasure to join my good colleagues, chief judge thomas and judge bayer, my good friend, professor eastman and my former ex stern, professor fitzpatrick. i thought he would have learned more during the summer i had him there, but i'll see if i can set him straight this time. i will rely largely on my written testimony, the burden of which addresses the aspect of the hearing that deals with bringing justice closer to the people, which after all is an
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objective we all must share. the ninth circuit is at the c cutting edge of bringing justice to the american people for two reasons. we are so large and our court houses are further away for most people in our circuit. we have been forced by necessity to use the advantages of modern technology to bring justice home and make it accessible. we also have, because we are such a large circuit and have so many judges we have a concentration of resources. unlike other courts with smaller staffs and have to duplicate the clerks offices and other central state of florida, we have a central staff unified and we have resources to buy excellent
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equipment. what this means if you want a litigant in the ninth circuit, you don't have to travel from honolulu or billings or fairbanks or phoenix to see the arguments in your case. see the judges. what you can do is so long as you have a computer, you ckacan watch oral arguments anywhere in the world and in realtime and you can see the hearings archived on our website. we're the only circuit that does that and we do it because we have a commitment to the concept of open access. we also have a commitment to the idea we are there to serve the people and our function is to make it easier and cheaper for the parties and the lawyers to take advantage of our resource
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that we have available. so this is a commitment that we share and this advantage would be lost if we were a small court, concentration of resources we have would be gone. i think the case speaks for it sl so i need not belabor it. i want to speak about three points. it was mentioned about collea e colleagui colleaguialty. i want to reiterate it. when the fifth circuit was split, every single judge in the fifth circuit wrote congress and said, we must be split. that is not the case in the ninth circuit. with two or three exceptions, literally, few zpepexceptions ti have fingers on my right hand, all the judges are strongly united on the idea we should
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remain a single circuit. this involves judges appointed by different presidents, chief judges appointed by president clinton. i was appointed by president reagan and our junior colleague here was appointed by president w. bush. that is true of all of our judges but two or three. now, that should speak something to the functionality of the court, that the actual people who are involved in operating the court do not believe that the split would be a benefit. the committee ought not to impute to us a lack of collegiality that in fact does not exist. there was also -- the chairman also mentioned no one has talked about melding other circuits into larger circuits. in fact not the case.
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our chief judge emeritus, clooif wa -- cliff wallace has been advancing this idea for years. i commend to this committee, i think other circuits would benefit and other regions of the country would benefit from having circuits the size of california. many circuits like the first, second and third, hardly as large as the central district of california would, i think, benefit from being brought together in larger circuits. the larger the circuits the fewer circuit conflicts there will be for the supreme court to handle. you said you wouldn't stop me. i see my time is up. i do want to leave this idea on the table that splitting the ninth circuit is really going in the wrong direction. what this committee ought to be looking at is bringing together smaller circuits to help them gain the efficiency and
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colleaguialty the ninth circuit now enjoys. >> thank you. would you put up the map of the combined circuits, please? there we go. before the next two witnesses, your honor, since you brought it up, we have the existing circuits including the first, second and third, which are 6, 13 and 14 judges, and combined would be 33 judges, one less than the ninth circuit would be after the additions. as we go through the remainder, i do want to make sure. it's sort of a theme for today, that if the ninth circuit is too big, then the others are too small, and this would be the combination -- if the ninth circuit were to be left at 34 judges, which is what it is recommended to go through, you
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would have 33, 33, 31 and 29 by combining the other circuits including the first, second and third being combined. although the gentleman from new york told me the sophistication of the new york cases might be a problem for the main folks. we'll cover that at a later hearing. >> mr. chairman. >> yes. >> if you combine the first, second and third, you would still i assume call it the second? >> we would do whatever the gentleman from new york wants to get his vote. professor eastman, on that point of privilege, we will continue. >> chairman, issa, thank you for taking up this important issue. i testified before the u.s. senate more than a decade ago about the same subject. i think the problem remains as it was then. i was struck by chief judge thomas and the other judge's thoughts we ought to be here to talk about consolidation of the other circuits and happy to hear
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him say that explicitly. i want to deal with colleaguia colleaguialty. what we're not talking about is how friendly the judges are among themselves. i have a great respect for the judges on the ninth circuit, almost all of them and have a high level of colleaguialty in the normal way we use that word. i'm talking about something more specific that a judge used in a law review in 2003, the common interest of getting the law right. it's that colleaguialty that suffers the larger the court goes. we have a lot of evidence to that and testimony over the years. first circuit judge frank kaufman said increase the size of the courts you militate against old-fashioned colleag colleaguial tty existed when judges sat often with each other. that's the type of colleaguialty i'm talking about, checks the tendencies of some judges to fly solo as judge kaufman described.
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we know who those are on the ninth circuit. one's published the supreme court can't reverse him all the time. we have 18 extremely high number of combinations on the ninth circuit. if you look at the math, 3,654 different combinations of three-judge panels. if you add in the existing senior judges it's 17,296 different combinations of three-judge panels. jauj by the way talked about a uniform law in the west. i practice out there. it's more like the wild west. my clients ask me what my prediction is on how the 9th circuit will rule on their case. i say i have no idea. i might be able to give you a better assessment once i see the random draw of the panel. those draws are extraordinarily high in the number of combinations you might get. that necessarily fosters an inability to have a coherent body of law. you know, if we do break the
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circuit up and end up with more conflicts on important issues like patents as judge bea focused on, we might add more cases to the supreme court's docket. people complained it's getting too light in recent years. the main thing i'm looking at is the ability to get the law right. the extraordinary number of opinions that come out, it's hard for the practitioners to keep up with everything going on in the court. i know it's hard for the judges, as well. that necessarily creates intracircuit conflicts. oftentimes in nuanced decisions that don't manifest themselves for years or decades because of the large size. as the white commission reported, consensus among appellate judges throughout the country including about a third of the 9th circuit judges, that was awhile ago thought a court of appeals being a court whose members must work collegially
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over time to develop a consist and coherent body of law functions more effectively with fewer judges than currently authorized for the 9th circuit and concluded the optimal size of a circuit court was somewhere between 11 and 17, roughly half the size that we have on the 9th circuit now. and it's not just the reversal rate. i want to take this up. i know my colleague is going to talk about the statistics on the reversal rate. as judge posner pointed out in a thorough study, the 9th circuit had the highest summary reversal rate by far over any other circuit court in the country. i of thisity think goes to the outliers, the judges that fly solo unchecked by the lack of familiarity and frequent meetings with each other. it's six times as high as the next circuit. judge o'scanlon submitted written testimony to the court notes that one in ten of the 9th circuit's decisions taken up by
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the supreme court are the summarily reversed without oral argument and half reversed unanimously on a supreme court that we know is ideaologically divided. that demonstrates there's something going on an outlier effect, judges flying solo on the 9th circuit that quite frankly, doesn't exist nearly as frequently on the other courts of appeals. i think it is correlated and perhaps caused by the size of the court. thank you very much. >> thank you. professor fitzpatrick. >> mr. chairman, members of the committee, thank you so much. but the gentleman will remain that your old mentor is there. he wants you to at least strike some balance of what you remember him teaching you as you dispel what his opinion is. >> well, yes i thank you for having me, mr. chairman. i was an extern to judge cozin ski. i also clerked for one of his colleagues after that, judge o'scanlon.
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there's no question the ninth zirkt is a very fine circuit. i think we can have two tyner circs if we split it. like everything in life, there are costs and benefits to splitting the 9th circuit. ity have no doubt that chief judge thomas is correct if we split the 9th circuit, we have to spend more money to create another administrative apparatus in the new circuit. but there are benefits to splitting the ninth skirkt, as well. the benefit was alluded by professor eastman here. if we go to smaller circuits, we reduce the number of outlier decisions that the courts make. and when i say outlier decisions i don't mean it in a partisan way. we can have conservative and liberal outliers. smaller courts lead to fewer outlier decisions. let me first talk about the 9th circuit's reversal rate. this is good evidence that the 9th circuit is issuing more outlier decisions. it is indisputable that the 9th
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circuit has the highest reversal rate of any court of appeals in america and it has been that way for many, many decades. when people dispute that number as chief judge thomas did in his testimony, they usually talk about the win/loss rate of the 9th circuit at the supreme court. given the cases the supreme court has chosen to review the 9th circuit win lash loss rate is sometimes the worst, sometimes the best. that's not how serious scholars measure reversal rate. we look at how many are there compared to how many underlying appeals does the court decide. there's no doubt did the 9th circuit is an outlier in reversal rate, reversed much more often than any other circuit as a percentage of the appeals it decides. you don't have to take my word for it. there are sisters scholarly studies i site in my written
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testimony. one of them was written an by judge richard posner on the united states court of appeals for the seventh circuit. he sits in chicago. one of the most well respected judges in the history of the american judiciary. he looked at how often was at 9th circuit sum marrily reversed by the supreme court "the 9th circuit has the highest rate of reversal by the court." he looked how much it was unanimous lis reversed by the supreme court. "again the 9th circuit is at the top." he's not the only one. i also cite in my written testimony a study by dr. kevin scott. he's a p.h.d. in political science who now works for the federal judiciary. he works in the administrative office of the courts. he too looked at the 9th circuit's reversal rate. what did he find? "the frequency with which the 9th circuit is reversed is a statistical anomaly." the 9th circuit is on its own island when it comes to reversal rate. why? size is the reason.
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math tells us that size will cause a circuit to issue more outlier decisions. why is that? it's simple statistics. circuits decide cases in three-judge panels. three-judge panels are randomly selected from a larger group. you can run the numbers. i do it in my written testimony. the probability of selecting a panel of three with a majority of outlier judges increases as the size of the circuit increases. i did a graph of it in my written testimony for you. the math on this is not disputable. when i first raised these mathematical arguments several years ago the last time the split was on the table, the 9th circuit's own statistical consultant, professor david kay, he's now a law professor at penn state, he was back then a law professor at arizona state wrote a response to my mathematical points that i raised in my testimony here in ten years ago. he's a defender of the 9th
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circuit. he likes the current 9th circuit but he didn't disagree with the math. professor say said "fitzpatrick's mathematics have bearing on the optimal size of appellate courts." "the to the extent that panels of extreme judges are undesirable, a smaller court is superior." this is the 9th circuit's own statistical consultant agrees did smaller courts are superior. nothing here has anything to do with republicans or democrats. it's about the optimal design of a circuit court. smaller courts are better because smaller courts lead toe less extreme panels. it is possible to be overcome the math with a good en bloc process. a full-court could see an outlier panel and take the case en bloc and reverse it. the 9th circuit is too big for a good en bloc process. not all the judges can sit en bloc because there's so many. they randomly select 11 and you
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can having outliers making up a majority of an 11-person en bloc panel like you can on a three-judge panel. the ninth skirkt's process doesn't work. that's why the reversal rate is so high and other big circs don't have as high a rate because their en bloc process catches can the outliers. >> thank you for your testimony. your entire written statements will be placed in the record and additionally the other written statements are in the record. with that, i'll recognize myself for my line of questioning. i'd ask that map be put back up on the board. pick the combined one. thank you. it will get there. judge thomas, nurls opening statement, you very wisely pointed bureaucracy, efficiency,
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all benefits that you feel bigger has. does that mean that perhaps like judge kaminski, you would support combining these into similar sizes for the others essentially reversing when the fifth was split because right now, it's still smaller than your circuit would be if we put it back together? >> well, if you were designing circuits from scratch, my answer might be yes. but we have established circuits with established jurisprudence and i think combining circuits now would certainly cause more, wreak more havoc on the rule of law and their existing administrative structures than if we were starting. >> but let me follow up if you disagree with putting them back together, then let's go through a couple of things. first of all, that means, for example, the first is an incredibly inefficient. it only has six judges. it's very small. it represents a small population and a small amount of caseloads.
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by comparison to the other circuits. so i appreciate the fact that new hampshire and maine have different law than new york or massachusetts but the fact is that you mentioned that your judges the vast majority support staying together. and, of course, unanimously or nearly unanimously, the judges of the fifth circuit supported breaking up. well, just without trying to be disrespectful, this is, in fact, not your business. the business of the size of the courts, the efficiencies, the financial contribution our appropriators give is disproportionate lit our obligation and so when you say that it's on one hand more efficient to run the 9th circuit as a large group and professor
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fitzpatrick says that it is in fact a highly reversed, then i have a bit of ambiguity to deal with in my position which is that you say it will cost me a few million dollars to break up i can circuit. professor, but what does it cost for the supreme court to take up cases and what are the cost of the ones they don't have time to take up and reverse that are decided wrong, the bad law. >> i appreciate the dollar figures you gave us. though the figures probably don't add up to one case that's decided that goes to the supreme case, would they? in a typical patent case, $8 million or $9 million for each side if it goes all the way to the supreme court, it's more but the cases that you get wrong that end up in the supreme court have legal fees greater than you've described as your cost of having a few more courtrooms. wouldn't you agree?
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>> well, i had to respect flit disagree, mr. chairman. and i want to say. >> have you looked at legal bills in cases before you cost. >> i knee t they're tremendous legal bills. first of all, we weren't the most reversed circuit. we haven't been during account roberts era. last year we were the second most, the year before the tenth, the year before that the fourth, the year before the fourth. >> let's go back. professor is that true they've been doing better lately. >> into it is true they're not as bad as had he used to be, but they're still the most reversed. in any given year, does another sirveth have a higher reversal rate, occasionally. over the run of the last 20 years, is 9th circuit is 44 first more often reversed than the next closest circuit. >> let me put my questioning on a piece of history. the white commission which was mentioned multiple times. their final report from december
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1998, in that, by ron white does not call for breakup of the circuit. >> that's right. >> he does call for effective breakup of the circuit because he says we proposed 9th circuit court of appeals be organized into three regional based adjudication divisions. those divisions would be alaska, idaho, montana, oregon and eastern and western washington. second one the middle division would be the northern, eastern california, guam, hawaii, nevada, and northern mariannas. and the southern division which would be arizona, the central and southern districts of california where reside. basically his recommendation was to break your circuit into typically circuits so there would be regional adjudication. do you support that today? >> i do not.
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>> so when people refer to white commission, he did support breaking up your circuit. he simply had a different way of doing it such that you could have one set of law no matter where it was decided but it would achieve what professor fitzpatrick was talking about, and i'm going to come back to you because time is limited and i want to make sure i get at least the organizational. if we were to have these large ones or go back, go to the other smaller one, the 12, or with the existing ones, the only way to get the equivalent of the 9th circuit being broken up to meet the rirkts that you mentioned, the smaller, the more predictive, not vo-to-have the random and your numbers were tag staggering i must admit. i'm going to assume if you followed white's recommendation and created three regionals, you would get all of the advantages that judge thomas is talking about of the large and the
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administration. but you would get enbanc's that were able to meet. they would be more or less 11 judges. you would have three-judge panels that were from a definable group that would be similar to the other circuits that exist today. is that correct. >> i think you're absolutely right, mr. chairman. >> so if anyone has any further comments before we go on to other members, i want to give you a chance because today when i look at an one side of the body that must decide saying break it up, and then i look at the history of a recommendation not taken in 1998 and i look at the testimony, i find that the middle ground between break it up and don't break it up may very well be the long ago forgotten white report. any comments? by any of you. >> go ahead, judge. >> as an old trial lawyer from california, let me tell you why the white commission
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recommendation is not practical. if you divide california into northern california and southern california, when we apply california law in diversity cases which we do all the time especially insurance coverage cases we'll have one interpretation of california law in san francisco and another one in los angeles. that is not good judicial administration. >> okay. by the way, i think when i read the white report, what i saw was that that did not prohibit the regions from resolving their ambiguity such that california effectively wouldn't be split if they did have for some reason a northern and southern split. we go to the ranking member of the full committee, the gentleman from the michigan. >> thank you, sir. >> back to you, judge thomas.
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did i get you correct when you said that supporters claimed that the reversal rate of the 9th circuit is much higher than for other circuits? because during the roberts court era, the most reversed circuit was the sixth circuit. >> that's true. >> so now, advocates for splitting the 9th circuit argue that the circuit is the nation's largest in terms of geography, population, and corresponding workload. why shouldn't these factors warrant dividing the 9th circuit? >> well, if you take you know
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the current proposals don't really change the -- solve the land mass problem, if you create a new 12th that has 80% or more of the land mass depending on the proposal with 20% of the cases. and because judicial budgets are caseload driven, it would create the largest land mass with the smallest amount of money in any of the circuits in the nation. correspondingly, california would be underfunded for the same reason. it would have to duplicate the resources with their diminished budget. it's not a good answer. about you. >> okay. judge bea, when congress considered splitting the split circuit into the 11th circuit, the overwhelming majority of judges and members of the bar in the circuit supported splitting the circuit.
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is this the same case with the 9th circuit? >> no, mr. conyers. just the opposite is true. i have think you have in your records a 2006 letter signed by the judges of the ninth circuit then. i was a junior judge then and i signed. with the exception of three of the some 45 judges at the time because senior judges also signed that letter, there were three judges who are presently also in favor of the split. and as far as i know, they're the only ones in favor of the split. they've written letters to the committee, judges kleinfeld, o scanlon and talman. as far as i know, the rest of our judges are against the split or agreeing with mr. -- with the chairman think it's none of their business. it's your business.
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aha. let me turn now to judge thomas again. what are some of the adverse impacts, sir, that splitting the 9th circuit would have on the provision of justice? >> well, it would certainly increase delay on the appellate levlg, not decrease delay. we would be stripped of our administrative innovations. we couldn't afford them. you can't divide the budget, reduce staff, put more work on judges' desks administratively and expect them to decide cases more quickly. in addition, i think the central point is that we would really lose delivery of services to the public in their serve to the district courts and bankruptcy courts. we provide consolidated and effective service to that.
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and i mentioned some of them, cyber security, wellness, support. building support the smaller districts benefit from our advice on how best to construct buildings. so the districts would suffer enormously if if the circuit were divided. >> uh-huh. >> thank you. >> would you -- if the 9th circuit were split, would judicial resource be duplicated?
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>> certainly with the administrative level they would be. we'd have two clerks of court, two staff, two circuit executives and staff. the list goes on. it's an enormous infrastructure for a circuit to have. so you would be unnecessarily duplicating those functions and also reducing the ability for those offices to deliver services because they would be doing the same service functions in each circuit. so for example, you take the mediators now, we have about eight mediators that -- we couldn't afford that in the smaller circuit. we know from practice that the mediation efforts in some other circuits aren't as effective. so we would lose the critical mass of resources that we would need. >> now, finally what are some of the costs attendant to a division of the 9th circuit? >> well, you start with construction costs because we don't have plays of sitting to hold court in the places
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designated by the legislation. you'd have to build a new circuit headquarters in phoenix and we've estimated that cost to be $128 million. the renovations of seattle to accommodate would be $54 million, $2 million each for holding places of court in las vegas, missoula anchorage. those would be just the start of the costs because obviously, we would have some increased travel when you have a circuit that extends from the arctic circle to the sonora desert and no center of gravity. so overall, the duplication would cost a significant amount of money. >> and to finally, my last question to professor fitzpatrick. do the california have the greatest share of cases among the various states and territories comprising the 9th circuit? >> by far, yes.
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>> and could the 9th circuit be reconfigured into two circuits having roughly the same caseload without splitting california? >> no, but i really don't see any reason why california could not be split. there's no reason why federal law could not vary from one part of a state to another in the same way that federal law now varies from one state to another. >> that's true. thank you, mr. chairman. thank you. >> i thank you. >> thank you. great questioning. i now go to the gentleman from georgia for his questions. >> thank you, mr. chairman. in looking at this i have more general questions. i think the question is i want to move to is, you know, how we'd go about splitting it. judge thomas, we were just discussing your last answer. can you clarify better what you were talking about as far as cost? because we sort of from the question i'm not sure of the answer.
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maybe i misunderstood it. but your last answer about cost in these different places and being all over, clarify that briefly for me. >> certainly. the current legislative proposals call for the creation of a 12th with a new circuit headquarters in phoenix and a secondary headquarters in seattle. we don't have space there right now. we don't have the space to hold court. we don't have the visiting judge space. we don't have space for the circuit staff. so we asked our staff and gsa to come up with a cost estimate of what that would be in phoenix and they came up with $128 million. the same was true for seattle because we have some upgrades we need to do and infrastructure needs. we would have to move out federal agencies from that courthouse and the estimated cost from that is about $54 million. that would obviously change and there are no places for holding circuit court hearings in the designated places of sitting likeply sue lefroy. you can borrow a district courtroom for a day but if you're going to sit for a week, you need a courtroom, you need
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visiting judge cham baernz infrastructure. we very that situation in honolulu. we're fortunate enough to be able to share with a bankruptcy court but you need staffing to secure that facility year round. based on caseload, it would only be used a couple times a year. that's one example. >> i appreciate that. if you're looking creatively here is, businesses other things we ought to change spaces all the time. i'm not sure of the size. i want to go too mr. fitzpatrick on this. being from the 11th circuit and when it split, but i want to go about something that is often talked about the reason we can't do the enbanc, true enbanc. the good justices were saying we're using technology and making good use of that. explain if you've got the good technology, if you don't have to bring them in, you could do them from an interchange, we do it in classrooms all the time, is
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there possibly another reason why they don't want to do the truth enbanc hearings? >> i don't know why they don't. it is theoretically available in the 9th circuit to have a full-court enbanc rehearing. as chief judge thomas noted in his testimony, it's never been done but it's theoretically possible. why they don't need see the need to do is is beyond me. one of the things i know theed in my written testimony -- when i served an as an a law clerk, we had ten democrat appointees and -- it is not a representative enbanc process if they did go full-court enbanc, the reversal rate might fall because they would be able to catch some of these outlier panels better. >> i'm asking if you did more enbanc, you might see a need to split the circuit. because this is something we've got to look at. the question here, i want to
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come back to mr. fitzpatrick. i'm interested in what you have to see. one of the things there's different ideas not just the ones that were mentioned is pending what factors do you see as a priority in deciding which states, namely oregon and washington going to a new 9th circuit as to which states go in the 12th? >> there's probably a lot of factors that go into that analysis. one of the most important factors is to try to get the circuits to be as close as possible in terms of the number of judges for some of the reasons we've been discussing here to cut down on outlier panels to make a enbanc process more meaningful. if you keep california by itself in one circuit, the analyses suggest you need over 20 judges for that circuit still. it will still be it the biggest circuit out there. i would encourage the committee to consider some kind of division of california if not what the chairman mentioned from the white commission, then some other way to divide up california because it's really the elephant in the room.
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>> and i'm interested, i'll open it up to everyone quickly or they can get back to us, as well. looking back because i was in a district last affected in an area of georgia in the fifth and the 11th when the circuit split, an what kind of lessons can we learn from that that would help the transition if we moved ahead to the ninth? >> there was a logical division geographically. there was a proportionality of caseload. they had places of sitting intact. and all of the judges supported it. so it was seamless. you don't have that circumstance with the 9th circuit. there's no proportionality in any of the splits. there are either in land mass or in population. the judges do not support it. and it would lack jurupa angie graphic coherence. so the good judges of the fifth made that decision and it was a logical one i think at the time.
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it's not logical for us. >> i appreciate the judge's opinion on that. like i said, i think whether the judges agreed or not frankly comes down to a platter of concern but not also a matter opinion on then body, as well. i appreciate you coming and with that, mr. chairman, i yield back. >> i thank the gentleman. we now go to the ranking member of the subcommittee, mr. nadler for his questions. >> i thank the chairman. judge thomas, last night, president trump attacked the 9th circuit which he said is in chaos and frankly in turmoil. he said people are screaming to break up the ninth circuit. you have to see how many times they've been overturned with their terrible decisions. less than .1% of 1% of the ninth circuit are overturned by the supreme court. does that is statistic give weight to the president's characterization or do you think it's important that courts stands up to the executive when necessary?
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>> judicial independence is important. i know this committee has recognized that. i would not want to comment on the president's remarks. >> okay. and many supporters of legislation to split up the 9th circuit are up front about the fact they support a split because they perceive it to be a liberal court. if politicians are able to gerrymander a new court, that would be more in line with their beliefs what effect would that have as a neutral arbiter. >> it would diminish the public's respect for the rule of law. i trust the chair that he would not engage in that kind of endeavor. >> thank you. the testimony was, i think it was your testimony before that it would cost $130 million to split up the circuit. can you give us an idea of what you could do with $130 million if we dedicated those funds toward increasing availability
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of legal services for low income civil litigants in the 9th circuit? and the united states as a whole. >> one of the great problems we have in the appellate courts are pro se litigation. pro se litigators approaches 50% of the volume of our cases. we are, we've been engaged in a prison litigation reform effort to solve the problems in the prisons and take them away from the courts and improving mediation and grievance proceed urnz providing prison staff with more effective and efficient ways of doing things. we had a summit in the sacramento and task force for each district. we'll save money that way. if we could use $130 million that would go a long way to solving that problem. >> thank you. judge cozin ski ask, supporters of splitting up the ninth circuit say it would suffer from a lack of predictability in part
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only a subset of 11 judges serve in any enbanc. professor eastman alluded to this before. given only 19 out of almost 1312,000 cases that were terminated in 2016 were heard enbanc, do you think the process has a pleasurable effect on the jurisdictions of the court? >> it has some effect but the important important there is that we have 19 cases. actually we had 21 cases this past year. other circuits take much fewer enbancs, take enbancs in the single digits and often the low single digits. whereas we have i an truncated enbanc, we're able to police our panels much more effectively than other circuits that have to convene. we have worked this out mathematically. as we know, sampling is not
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perfect but we often poll smaller groups to give us a good indication of what is outcome and logical. it turns out 11 judges outcome, if you take a group of 29 judges, the size of the active judges on the 9th circuit and you select at random 11, that the outcome of the 11 is almost always 90% of the time will be the same as the full group. so the professor fitzpatrick's concerns about predictability i think are vastly overstated. >> thank you. >> thank you, professor fitzpatrick, your testimony points out that over the last 20 years, the majority of judges in the 9th circuit were nominated by democratic presidents while the supreme court justices were nominated by republican presidents. he reached the unsurprising conclusion this is a major factor in the somewhat high
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reverse are factor of the 9th circuit over that time. won't the ideological makeup of the courts change over time as they make new nominations and why should we make a permanent structure of the 9th circuit to address a temporary issue? >> you're absolutely right. but my view does not in any way depend upon the current ideological makeup of the ninth circuit versus the supreme court. that was a note i made that size is not the only factor in the reversal rate. my testimony is based on neutral principles. >> excuse me. your testimony was very clear that a major, perhaps the major reason for the disparity is the difference in appointments and then you say but might size play a role, as well. i think it might very well because mathematical theory predicts that it will. there's no certainty. there's no evidence for that at all you. say it might very well. we know about the idea lodge --
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about the political disparity in appointments. that's clearly going to have an effect. then we have a theory that maybe because mathematical theory predicts that it might. you have no evidence for that at all really. >> if i may. >> reporter: do. so the same studies that show that ideology matters to reversal rate also shows that size matters. one of the things i cite in my testimony is a study by dr. kevin scott. he works for the federal courts. and he concluded that the dual factors of the ninth circuit's greater size and its limited enbanc procedure added nine reversals a year to its success at the supreme court. that's what he came up with when he ran all the numbers. he oo he's a p.h.d. lots of judiciary guys are wrong. >> on that shining note, we now go to the gentleman from utah, chairman chaffetz. >> thank you. i appreciate you all being here and to the three judges on our
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panel today, thank you for your time and commitment to this country and your service to our country and thank you for your good work. professor eastman points out this paper that was written by seventh circuit chief judge richard posner who and i'm going read part of mr. eastman's testimony here. the quality of judicial output declines as the number of judges on an apel lant court expands was the premise of or the conclusion of richard posner's chief judge posner's paper here. i'm going to read again from mr. eastman's testimony. thus, although the fifth circuit had nearly the same caseload as the 9th circuit, the 9th circuit experienced a rate of summary reversal more than six times higher than the next busiest circuit. to be fair, that was looking at from 1985 to 1997.
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but he went on as 9th circuit judge owe' scanlon. noted in a 2013 article "approximately one in ten ninth circuit cases reviewed by the supreme court results in a summary reversal." and another half are reversed unanimously in a nonsummary disposition by otherwise an ideological decide court. moreover, according to mr. eastman's testimony, the combined reversal rate of the fifth and the 11th circuit is much lower than it was before the two circuits were split from the old fifth and so the question goes, was chief judge posner wrong in his conclusion that the quality of judicial output declines as the number of judges on an appellate court expands? and if he is wrong, why is he wrong? i mean, he's citing some fairly strong evidence over a 12-year
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period. >> well, i guess i'll start, if you don't mind. of course, when i hear the, those sticks you recall that he's talking about a period before i even joined the court 20 years ago. so if you look at different periods of time on summary reversals you actually get much different data. i have looked at that because the subject seems to come up a fair amount because they want to use that as a statistic. the more important question is, is -- does size affect quality of deliberation. in the 9th circuit i would say absolutely not. i think our deliberations are better than when i joined the court because of technology. we are exchanging views every single day in rapid form. and we have different judges who take different interests. some are interested in intellectual property, some are very concerned about the consistency of our unaccomplished decisions, some are concerned about bankruptcy law and some are concerned about environmental law. all of these judges bring
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different perspective to the court. and we have free and robust exchanges every day in terms of the kind of collegiality that professor eastman was talking about. so i think -- i don't mean to. >> go ahead. go ahead. >> but my colleagues may have a different. >> you looked at very statistical information and dret conclusion that there is a direct relationship. i can tell professor fitzpatrick wants to jump in here. go ahead. >> judge posner is simply one of the most respected judges in the history of our court system. perhaps the only federal judge that is smarter than judge posner is judge cozin ski. i think that he deserves great weight when he runs the numbers and comes to the views that he does. again, it's consistent with everyone else that has looked at the data. again, the study by dr. kevin scott for the federal judicial center. it all says the same thing which is size matters.
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>> and representing some i think the number is more than 65 million people, i'm just not buying that it's faster and that support services -- i mean, our population has grown over the years by tens of millions of people. and there does come a time when i think you need to split. i got to tell you, there is a great deal of frustration with the 9th circuit. there are people that are absolutely fed up with some of these things. as a member of congress, i got to tell you, the rulings that we've had coming out against president trump to protect our borders and secure this nation while none of you on this panel made that decision is infuriating to us to look to the 9th circuit to see people say well, there's you know 70 people here we've got to the protect and 80 people here. what about protecting the united states of america? and it's the ninth circuit that is causing these problems and taking away the duties that the judiciary committee, the congress has given to the president of the united states to protect our borders.
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there are people that are outraged about this. and those are specific cases with specific judges. but i got to tell you, koordsing to some others that i hear on this panel saying where is the outrage? there are a lot of us that are outraged. president was duly given by congress the authority toy protect our borders and for these injunctions to come in place and prevent the president from doing his job is absolutely totally wrong. i do think, mr. chairman, this is the right way to do this and to look at it. i do think that certainly chief justice posner and some of the panelists are here are on the right track. i think being able to deal with things en bloc too should be given heavy weight. that is clearly not happening in the 9th circuit. i yield back. >> can i venture an answer? it won't take very long. >> your honor, i might some day be in your court. how could i deny you.
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>> good answer. you know, a model, i have great deal of respect for judge posner but dick and i disagree on all sorts of things. the model is only as good as the input you leave into it. if you leave out important considerations the model will give you the wrong answer. the period in question that judge posner looked at overlooked the makeup of the two courts. and the reality is that in 19, late 1970s, the 9th circuit moved from 13 judges to 23 judges. and president carter was able to appoint 11 or 12 judges to the 9th circuit. some of the most liberal judges the world has ever seen. grood friends of mine with whom i disagree a great deal. and they will a tremendous influence on the jurupa of the
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court at that time. at the same time, the supreme court was very machine going the other direction. and so much of the disparity that professor fitzpatrick and judge posner refer toe you can only attribute the size if you think the judges are blanks fears. if you taking into account who the judges were that populated the two courts, that explains it. it's not a questions of size. part of dick posner's analysis is he looked at the wrong thing. he looked at size whereas really it was the composition of the panels that made the difference. now, the fact they were reversed by the supreme court doesn't mean we're wrong. it may mean it the supreme court was wrong at least in the view of my colleagues. but i think that's what was going on there. >> i thank you. i'm going to be forced to move on if you don't mind.
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we now recognize the gentleman from georgia for his round of questioning, and i trust that we'll continue this lively back and forth of you know size matters, it doesn't matter. ideology matters, it doesn't matter. but i would admonish all of us that we are trying to figure out whether to split the court for reasons that should not be ideological by definition. thank you. >> thank you, mr. mr. chairman. i clerk on the 9th circuit court of appeals for late judge thomas tang. the 9th circuit had awesome judges then. it has awesome judges now. and what i want to ask and first of all, thank you, judge, cozin ski for being here, my friend beverly hill, it says very kind things about you. as appellate court, you have to take on courses? you can't decide to pick and choose? >> of course. >> and it is no secret that
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states like california are just more progressive, than, for example, a state like kentucky and isn't it possible that because you have to take all cases you just are going to get a higher proportion of cases that push the envelope that challenge the status quo that are more progressive and as a result, some of the statistics you're seeing are because of the cases that were brought before you. is that correct? >> that's certainly right. of course, it would be exacerbate if california were isolated. one of the ideas of region flal circuits al circuits is that no sing st. louis state dominates a circuit. if you have a large state, you would have surrounding states that will provide other perspective, the rural perspective, and isolating california would only exacerbate the problem of which you speak. >> thank you. because i see many of the statistics that my colleagues on the other side bring up and they
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are sticks without any meaning. i don't think the relevance is what percent does any particular circuit get reversed. the relevance is the quality of the opinions coming out of the circuit and are they doing ground breaking opinions. there in 2014, when 9th circuit said bloggers have the same free speech protections as traditional press that was an amazing opinion. that's the kind of things that we see out of the 9th circuit. so i think the real statistic is what are the quality of opinions coming out? are the judges putting down their ration flals and explaining to the american people what they are doing? for the record, i know the that multiple judges have imposed a block on donald trump's bigoted travel ban so just today, a maryland judge and a fourth circuit blocked donald trump's travel ban. do any of you believe we should break up the fourth circuit? that would be a no for the
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witnesses. >> the other thing i think we ought to look at is in terms of how these circuits are configured, you do have efficiencies from the way the 9th circuit is operated. i clerked on there. and it's interesting that my colleagues on the aisle don't want to have a those efficiencies. but because of the way it's structured, i don't see any reason why we should change the 9th circuit. i think doing so would be purely for ideological reasons. keep in mind, federal judges get paid to follow the constitution regardless of where they sit. whether they sit in maryland or in california or in washington. and those federal judges have struck down actually put a block on donald trump's travel ban. it's not ideological. it's judges across the nation that have made this decision. so i think it's strange to say let's break up the ninth sirveth as the president said last night
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because a judge in the 9th circuit said that his executive order as based on bigotry and unconstitutional. because today the maryland judge said the same thing. i'm waiting for the president to say let's break up the fourth circuit. even if you broke up all these circuits, if you had 50 circuits, you would still have the same number of federal appellate judges being paid to follow the constitution. you would still get the same decisions. it would be out of the 29th circuit instead of the 9th. you capitol get change in the law coming out. i think this entire hearing is sort of bizarre and useless. with that, i happily yield back. >> i thank the gentleman. the jaxt from the florida, mr. desantis. >> thanks to the members of the court and the professors. judge cozin ski, do your court, supreme court have a robing authority to review actions of the political branchs? >> no. >> so it needs to require a concrete legal case or controversy, correct?
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>> absolutely. >> soful the president does things congress does things, it may end up in front of the court properly but there may be no way people can get into court for you guys to adjudicate if no one has standing to bring a legal case, right? >> absolutely. >> do you believe that article 3 courts can possess the institutional competence to second-guess national security decisions made by the president or the congress? >> in general, not. >> why? >> i would have to be presented with an actual legal issue to understand. i mean, there are certainly possibilities that congress passes a law that gives us authority to adjudicate such an issue. but in general, courts are very poorly informed in terms of making foreign policy decisions. we don't have information. >> yeah. is it safe to say there would be a difference between a court
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passing judgment in a proper case between whether action was lawful or constitutional versus whether it was politically wise or the correct policy, correct? >> i agree with you entirely. >> what are the checks on the courts as you understand the constitution? i mean congress can pass a ta statute. maybe the president signs it, it goes beyond congresses. you can effectively check the congress through a concrete case. you guys get it wrong. your district court gets it wrong. the supreme gets the grievously wrong. how do the american people check bad court decisions. >> well, if i may so, when the supreme court speaks, by definition, it gets it right. if the supreme court interprets the constitution, that's the way -- that's what the constitution says. that's the way our system works. >> i disagree with that. i think if you look at cases from like the dred scott decision and other states,
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courts are not infallible. i think you're a very smart guy. i like a lot of your opinions and i think you're very principled. i really disagree with that. this is not speaking ex-cathedra from this building over here. they do get it wrong. i guess your argument to me is there is no recourse for the supreme court. 5-4 decision, even if we think it's way outside what the constitution is, there's no mechanism for us to check that. correct? >> well, yes, we can amend the constitution. there is a mechanism and we can amend the constitution. we can also, the supreme court does and let me just make clear, i disagree with any number of opinions of the supreme court. particularly those where i was reversed. i disagree with every single one of those. they got it totally wrong but as a matter of constitutional law,
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the supreme court says that's what the constitution says. >> yes, you as a circuit judge are bound by it, of course. >> we're bound by it, but the supreme court does reconsider its views from time to time. we saw that happen with case bauers hardwick that held that homosexual sodomy could be criminalized. and 17 years later, the court changed its mind and reversed course. so the court does reconsider its rulings. and one possibility and one way in which those of us who disagree with the supreme court, some of the supreme court's rulings can seek to reverse a decision is by bringing other cases and making a stronger case and persuading the court to
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change its mind. >> but that requires private parties, that requires -- that's not congress as the representatives of people checking. there are different things in the constitution circumdescribing your jurisdiction and what not. i think some of the courts in your circuit are playing a dangerous game here. when you talk about analyzing an executive action that's taken directly pursuant to a very broad congressional statute and you basically say if the president was somebody else, it would be lawful but because this president campaigned and said things that we disagree with, oh, no, call it off. >> would the gentleman suspend? i'll give you back the time. but consistent with the judge's other role, they can answer any hypothetical question they want but nothing related to. >> i was going to end with a statement. >> i apologize. go ahead. >> my concern is is that when that's being done and you're
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invoking these campaign statements, i don't see a principled way where that's going to end up making sense over the long-term and i understand there's antipathy in our country that is reflected on some of your courts for the current president but that is not enough of a reason top wade into some of these sensitive matters of national security. so i think the courts you know, why they think they're saving the day from some people's perspectives they maybe end up in the long run undermining you know their proper role. i don't expect them to respond. i'm concerned. i yield back. >> i thank the gentleman. i might note that our former president thought citizens united was badly decided and told the supremes in the well of the house. so many people don't like decisions but i side with judge kaminski. ultimately there's is the last word at the time we make it. >> us california boys have to hang together.
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>> we will hang. >> if some of this legislation passes, we will hang separately i guess. with that, we go to the gentle lady every california, miss lofgren. >> thank you, mr. chairman. first i'd just like to say we often get professors and that's not to diminish your presence here today but it is a rare day when we have justices and it is really an honor that you have come here to share your thoughts with us and i for one appreciate it a great deal. it's great to see the faces after i've seen the names on the decisions and it's really an honor to hear from you. just getting to some of the meat of the issue, you know, mr. eastman has testified that it takes extra time for the 9th circuit when deciding decisions. it seems to me if that's the case, that could relate to the complicated cases that come
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before the 9th circuit. i come from silicon valley. there is a lot of litigation coming out of valley that's highly technical. i think we're very lucky to have a very skilled district court judges in san jose who can sort through this but these are complicated cases. it's not, you know, a trip and fall that ends up in a diversity case. i mean, it's complicated. and inefficiencies aren't just relatesed to time. it's related to the complication of the case and looking at empty fitzpatrick's testimony, it talks about the various reversal rates. but it's interesting if you look at instead of the 20 years, if you look at a ten-year reversal rate using the very same methodology and data sources my staff crunched the numbers and instead of the number that was in the testimony you come up with a 1.84 for every 1,000
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cases and if you look at the last five years, it's 1.55 per 1,000 which is a little bit more but not much more than the six districts. i think these sticks really are not very enlightening. for me as chair of the california democratic delegation, it's important to me that the state of california not be divided. you know, unless the state itself were to divide into two states which is really not something the people of california want or the congress wants, it's very important that there be a cohesive rule of law in the state of california on these diversity case decisions. i think justice bear cozin ski mentioned earlier. there's some other reasons for -- you could theoretically take montana and idaho out but it wouldn't materially make a difference in terms of -- it's too small a state and as i think
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judge cozin ski said, there is value in the diversity. >> it would make a great deal of difference if i lost my -- >> it might make a personal difference but in terms of the number of cases it wouldn't i just wanted to say i think it's unfortunate in a way and i don't blame the chairman. i'm sure this was planned long before the decisions yesterday in maryland and hawaii. one of the things that's important for us to do, all of us as americans, is to defend our structure. and that's the judiciary, executive, and the legislative branch and there's a lot of criticism. that's said recently i think just today that a judge that decided -- i don't know if it
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was the maryland judge. i think that's unfortunate. we all had cases where we diskbreeed. i certainly have with circuit, file court and supreme court decisions. but disagreeing with the outcome is very different than undercutting rationale for the decision making and i think it's important that we do not do that. yes, the president has -- is given the power to do a variety of acts. it is not given the power to violate the constitution. and certainly there will be a lot of litigation. we'll see what in the end the decision is. but i, for one, am confident that the judges who will be hearing this case will be hearing it with an open mind, an eye on the facts and come to the best decision that they can. and i -- i don't see how busting
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up the ninth circuit or threatening to do so in a retaliation or a judge in hawaii --ium rrb not saying that is what is intended but it might look like that. and i think that is the last thing that congress ought to be perceived at doing. because we ought to have a set for the judicial branch. i do and i'm sure all the members do. i would yield back the bal pss of my time and thank you once again for the justices for coming and honoring our branch of government with our testimony. >> i'm going to ask yams consent that senator flakes' written statement be placed in the record at this time. without ubjekobjection, so orde.
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so the gentleman from arizona will follow the gentleman's from arizona's statement. recognized. >> thank you, mr. chairman. but i do believe i am a member of this committee. i was so informed that i am not a member of the committee is actually quite shocking. >> i apologize. not a member of the subcommittee. >> i am a member of the subcommittee. >> i apologize. i apologize. that's a staff -- >> it's good to be where you feel wanted. i can tell you that. as >>s a an important member of this committee and subcommittee that you be allowed to talk for the full five minutes. >> that's the problem with large numbers. >> you'll note this is size of the day is the size of the ninth circuit. >> thank you, mr. chairman.
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and thank you all the panelists. and when you are the last guy, as i typically am, even when i am on the committee, there's so much to talk about that is peeked my interest. this really is the largest circuit. one of the judges mentioned the 12th circuit was from the arctic circle to the desert. unlike the current ninth circuit, this is part of the problem. this circuit represents over 60 million people. which is at least double the size of any other circuit, four times the circuit of first and tenth circuit and not koupting the ninth, it has a population of 22 million. the ninth irk ist akoupts for more than 1/3 of all appeals in
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the country, totalling 13,000 by the end of last year. no other circuit had more than 5300 cases pending and last year it took nine months on average, more than two months longer than the next slowest circuit. when justice anthony and kennedy sat on the ninth circuit, he wrote to the commission on structural alternatives. justice kennedy note that any circuit that claimed the right to bind 1/5 of the people by decisions of its prejudge panel must be the heavy burden of persuasion. and he later said in a different occasion that i do not think it's appropriate for judge of the ninth circuit to lobby hard against the fifth.
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meaning a proposed split. the 1980s, the united states fifth circuit court of appeals was in a similar situation,all beit not as great as today. it had 26 authorized judges and a overboardened case load. over 94% of the total pop ylz of the fifth and 11th circuits comboined. but at the time there were certain heightened arguments that we heard today about the detriments of splitting the fifth. and the question that comes to my mind is who here today would argue that weed wrr be better off without the split? we've actually heard some enticing proposals today and in one of the arguments -- excuse me, one of the sumries prezemai
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presented to us today the reference was made that there are advantages to a large circuit. for instance, uniformity tax laws achieved boy a large irk ist and in some issues the issue is made that a smaller circuit is better. so in this constant position today that may be a larger circuit may be better leads me to ask this. should we even have circuits anymore? should we have delineation by circuit? and if so, should you have some fluctuating number of judges coming on, depending on what theeshue is of the case before you. if it's a tax case, should you have 50 junls deciding? the point is i think that to make the argument that you
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should adjudicate or potentially adjudicate based on the issue, which is what is suggested by this position doesn't make a lot of sense. there's no predictability either. another statement was made about people on the ground. that we should listen to people on the ground. and that was a reference to the ju judges in the ninth circuit. but i've lived in the ninth circed and i've litigated as a litigant and an apelant. i've had cases go and talked to many litigators and it's similar to what professor easter was describing. we had no idea where we were going to go. as a client, my attorneys, very experienced attorneys -- i won't mention their names. -- but would tell me we have no
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idea because we cannot decide because the panel we will get could be anybody. pie then it's too late. it actually prevents predictability. it prevents due process and that is the position that i am in. have led the arizona senate, having been in the lenl slacher, where we had cases go to the ninth circuit. because it was taxpayers' dollars we were spepdinding and was virtually impossible to predict. and that's the trouble with the ninth circuit. i just -- when i realize -- i'm out of time. but there's so much to talk about and to deal with each one of the issues that you raised but i want to get backing down to this.
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justice sandra day o'connor also supported a split of the ninth circuit. these are thoughtful people who understand when you live outside and you're dragged in over and over to that to district, you are at an incredible disadvantage in getting due process for your client. thank you. >> i thank the gentleman and again, i'm sorry. >> all right. >> i'm going to do some quick wrap ups. perhaps the minority would want a couple. i'll try to stay outside of mied a monishment of others. you had said that combining circuits would be a problem. but isn't it true that to to the extent that there is different case law in different circuits that actually works to the detriment of the greater good of our country one law.
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so if in fact you were to combine for example the first and the second circuits and essentially wipe away their case law make it as though you were in the third circuit so the precedence would then be essentially considered to be open by the large group. would it be any different than asking the supreme court to hear all those ambiguities and resolve them? >> yes, in a sense. if you split a circuit, the circuit law applies to the -- >> i understand the split being easy. i don't know if we've ever combeened before. but the rhetorical question is at six judges would you ad monish that the first circuit is able to meet the same standards ass the ninth circuit? >> my answer is that the litigants, litigators in those circuits depend on the long history of circuit law to the
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extent there are inconsistencies that created unpredictability and undesirable. what i do think is helpful is the national initiatives, and administrative services to the extent we even have a cross circuit. >> i would agree we can have a separate hearing on the avail nlt to encourage the court to use its funds more efficiently through those practices. back to the white commission and i'm going to hit it gently. this is a somewhat political question. so i think i'll geto my friend. to the extent that political appointments do matter and you do use the jimmy carter appointments with some accuracy,
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then isn't in fact one of the problems not on your side of the day but on my side. the use of blue strip by senators who essentially have a veto over members they do not like ideologically, regardless of which president is choosing them, doesn't that exaser bait the partisan nature of your bench? >> i hesitate to speak on a matter regarding another branch. but the matter is quite complicated because of course these kind of decisions are made by the president selecting and push back -- >> let me ask it another way. perhaps any of you. if in fact this -- these bodies, the house and the senate, were unable to resolve the question of blue slip, then if we were to do ass the gentleman who is the
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party would indicate and essentially make california an island to itself, wouldn't we essentially create a situation in which the two democratic senators in california would insure based on blue, only judges in your seat. >> i think by definition what you're asking must be true. if the only senators that the circuit involved a single state and the blue power to senators -- >> professor fitzpatrick, i'm going to ask you this because with some bias with california, i look at the situation of a single state. i'm looking at a single state solution and saying that
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essentially under current senate rules would indicate that you would have very little diversity for auz long as the senators had diversity and at least in the case of my state, i'm with some trepidation willing to predict that there will be for a very long time. so how would you deal with that as a reality of the structure if we were to take what the gentleman, mr. flake, and mr. bigs had suggested and effectively split off everything from california? >> i think it's a big problem. california and hawaii, still two senators in california who want to keep the circuits and judges. so that's why i really recommend solutions that break california into pieces in some way or another. i think there are other ways to do it.
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but you went through a process, the senators did matter. if we cannot change the structure of senators essentially in their home state having effectively a veto and i'm trying not to be partisan in any way shape or form because if you go to arizona, you end up with the exact opposite. but if that is a reality, isn't that something that this committee should guard against a -- any circuit which would be essentially politically tilted if we can do it? >> i would hope the committee would make its decision based on not ittiaological factors and i take it with confidence. i just want to opine on what the
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congress should do internally. >> i was asking for your observation of the effect if there were -- was a single state solution with -- let's hypothetically say if california were a circuit, would you by definition, two states, two very different pairs of senators, current way the process works and some of you have gone through the process once, some twice. do you think that you would end up with vastly different circuits of and they would be one state circuits and is that something we should generally guard against? >> if i might answer more generally. i think one state circuits are a bad grd a whole variety of reasons, some of which you just identified. >> any other questions? okay. i'd ask would you all be willing to take some follow up
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questions. a number of members were not able to be here. they had competing markups. we'll leave the record open for five days plus whatever time it takes for you to respond. with that this concludes today's hearings. i want to thank all of you. the weather is clear. your ability to get home should be unrestricted. with that we stand adjourned.
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following the hearing and criticism from president trump on wednesday, three judges from the ninth circuit asked congress not to break up the court according to reports. the chief circuit judge sidney thomas says surngt division would have a devastating effect in the western united states. ♪ c-span's journal coming up friday morning, robert green from the polling firm reviews the results of the latest c-span psp survey on the supreme court and republican congressman from pennsylvania discusses president trump's 2018 budget. upcoming hearings on the alleged russian interference in the 2016
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elections and the reformed health care bill. and kathleen will continue the conversation about current proposals from republicans to repeal and replace the affordable care act, a law she helped implement. be sure to watch c-span's washington journal frooitd morning. join the discussion. on monday the senate conformation hearing begins for neal gorsuch. expected to last three days. day one for opening statements, day two for questioning the nominee and on day three, senators will hear testimony from outside experts. it all starts monday at 11:00 a.m. eastern. follow our live coverage on c-span 2. you'll also find it online and streaming on the c-span radio app. in the house, fbi director james comey will brief members oe


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